Erica Lynne Mirehouse

Transcription

1 Comment: Minority Voting Rights: Is Cumulative Voting a Valid Remedy for Violations of the Voting Rights Act or an Impermissible Tactic to Advance Racial Politics? Erica Lynne Mirehouse Published Article Citation: Erica Lynne Mirehouse, Comment: Minority Voting Rights: Is Cumulative Voting a Valid Remedy for Violations of the Voting Rights Act or an Impermissible Tactic to Advance Racial Politics?, 14 Scholar 521 (2011).

2 MAJORITY MINORITY VOTING RIGHTS: IS CUMULATIVE VOTING A VALID REMEDY FOR VIOLATIONS OF THE VOTING RIGHTS ACT OR AN IMPERMISSIBLE TACTIC TO ADVANCE RACIAL POLITICS? ERICA LYNNE MIREHOUSE* I. Introduction II. Suffrage and the Voting Rights Act III. Cumulative Voting as a Remedy IV. The Effect of Proportional Representation V. Conclusion The conception of political equality from the Declaration of Independence, to Lincoln s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can only mean one thing one person, one vote. Justice William O. Douglas, Gray v. Sanders, 372 U.S. 368, 381 (1963). I. INTRODUCTION One person, one vote. To most Americans, this phrase is more than a simple slogan. It has become a long-standing principle of democracy and is the basis for nearly universal suffrage in the United States. The principle that all citizens are entitled to equal legislative representation was enunciated by the Supreme Court in Reynolds v. Sims. 1 In Reynolds, the * St. Mary s University School of Law, Candidate for Juris Doctor, May 2012; Colorado State University, Bachelor of Arts: Journalism, I would like to thank the Editorial Board and Staff of The Scholar: St. Mary s Law Review on Minority Issues, with particular thanks to my Scholar Comment Advisor, Carson Guy, for his topic idea and thoughtful insight throughout my writing process. I would also like to thank my mother, Patti Mirehouse, for proofreading my Comment on multiple occasions; my father, James Mirehouse, for giving me the drive and opportunity to attend law school; and Chris McNatt for his patience and understanding since I began my law school journey U.S. 533, 566 (1964). In this legislative apportionment case, voters alleged that despite the vast amount of population growth that had occurred in Alabama from 1900 to 1960, there had been no reapportionment since Id. at 540. Voters asserted that many counties had become the victims of arduous discrimination because the legislature had not followed the Alabama Constitution which prescribed decennial reapportionment of the 521

3 522 THE SCHOLAR [Vol. 14:521 Court found that the state must apportion seats on a population basis for both houses of the Alabama legislature. 2 Apportioning representation ensures the voting power of each voter is equal. 3 In Reynolds majority decision, Chief Justice Earl Warren said: Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. 4 The Court went on to explain that [w]eighting the votes of citizens differently, by any method or means, is far from justifiable. 5 Reynolds was decided one year before the Voting Rights Act was passed in The purpose of the Act is to outlaw discriminatory voting practices and to extend Reynolds one person, one vote principle to all Americans regardless of their race. 6 Today, this democratic principle has evolved into one person, six votes for residents of the Village of Port Chester, New York when choosing their city council. 7 A new cumulative voting scheme was ordered by a federal judge as a remedy for a Voting Rights Act violation. 8 The effect of cumulative voting in this small comlegislature. Id. The Supreme Court explained that the right to direct representation was a bedrock of our political system and found that both houses of bicameral legislatures had to be apportioned on a population basis. Id. at Reynolds v. Sims, 377 U.S. 533, 568 (1964). 3. See id. at 577 (highlighting excerpts from the Supreme Court s decision in Wesberry v. Sanders, 376 U.S. 1 (1964), a congressional districting case that was decided just four months before Reynolds). The Court explained that although it is impossible to have completely identical legislative districts, states are required to make an honest and good faith effort to create districts that are of equal population. Id. See also Wesberry v. Sanders, 376 U.S. 1, 7 8, 18 (1964) (explaining that equal representation for equal numbers of people was the primary objective of the Constitution in regard to the House of Representatives). In Wesberry, the Court held that population equality among districts is the constitutional test to determine if a districting scheme is valid. Id. at 18. The Court also established that equal representation for all people is a fundamental principle of government. Id. at Reynolds, 377 U.S. at Id. at Voting Rights Act of 1965, 42 U.S.C (2006) (codifying the guarantee of the Fifteenth Amendment which prohibits denial or abridgement of the right of any citizen... to vote on account of race or color ). The Act was adopted in response to continued discrimination against African-Americans in the South who were trying to exercise their right to vote. Introduction to Federal Voting Rights Laws, U.S. DEP T OF JUSTICE, CIVIL RIGHTS DIV., (last visited Sept. 3, 2011). The Act applied measures to get rid of state-imposed restrictions, such as literacy tests, that impaired the right to vote. Id. Amended in 1970, 1975, and 1982, the Act is seen by many as the most successful piece of civil rights legislation ever adopted by the United States Congress. Id. 7. Fox News Distorts Facts to Attack Election of First Latino to NY Village s Legislature, MEDIA MATTERS FOR AM. (June 16, 2010), Jarrett asserted that allowing individual voters to vote six times for one candidate is in violation of the Equal Protection Clause of the Constitution. Id. 8. United States v. Vill. of Port Chester, 704 F. Supp. 2d 411, 448 (S.D.N.Y. 2010).

4 2011] CUMULATIVE VOTING 523 munity means each voter has six votes to cast in the election that can be apportioned in any manner including casting all six of one s votes for only one candidate. 9 As opposed to the current straight voting system where candidates, like city council members, are elected from specific voting districts, voters are limited to voting for candidates in their district, and the candidate with the highest number of votes wins, cumulative voting allows voters to vote for candidates running outside of a voter s district. 10 Although proponents argue that the movement away from limiting voters to their own districts dispels gerrymandering or the practice of purposely drawing districts along racial lines the implementation of vote plumping or casting all of your votes for one candidate 11 has left many citizens wondering if cumulative voting is the best way to ensure an equitable government system. 12 Cumulative voting was mandated in Port Chester after the U.S. Justice Department filed a lawsuit charging that Port Chester s voting system illegally diminished Hispanic influence by denying equal opportunities in the election process. 13 The Justice Department alleged that the voting process denied the Hispanic population an adequate opportunity to participate in the election process despite the fact that Port Chester s population of 28,000 is almost half Hispanic. 14 Judge Robinson of the Southern District of New York accepted the village s cumulative voting proposal after concluding the village had met all three preconditions established by the Supreme Court in Thornburg v. Gingles 15 as guidelines for determin- 9. Id. at See Michael McCann, A Vote Cast; A Vote Counted: Quantifying Voting Rights Through Proportional Representation in Congressional Elections, 12 KAN. J.L. & PUB. POL Y, 191, (2002) (providing an assessment of proportional representation). Mc- Cann argues that proportional voting systems provide an attractive alternative to straight voting because they offer a greater incentive for minority groups to vote and allow minorities increased access to legislative positions. Id. at 212. See also LANI GUINIER, Groups, Representation, and Race Conscious Districting: A Case of the Emperor s Clothes, in THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS IN REPRESENTATIVE DEMOCRACY (1994) (arguing that legislative representatives should be elected using cumulative voting from multi-member districts instead of using plurality voting from single-member districts). 11. Vote plumping is the main strategy employed by minorities to elect candidates of their choice under a system of cumulative voting. Vill. of Port Chester, 704 F. Supp. 2d at See McCann, supra note 10, at 194 (arguing that proportional representation offers several enhancements over the winner-take-all-system, particularly in relation to improving the political voice of minority groups ). 13. Vill. of Port Chester, 704 F. Supp. 2d at Id. at 416, U.S. 30 (1986).

5 524 THE SCHOLAR [Vol. 14:521 ing claims concerning Voting Rights Act violations. 16 Once all three of the Gingles threshold factors have been proven by a preponderance of the evidence, the court must then conclude that based on the totality of the circumstances, the challenged practice impairs the ability of the minority voters to participate equally in the political process. 17 If the twostep inquiry is satisfied, a court is required to accept the defendant s remedy for a Voting Rights Act violation if it is legally acceptable. 18 This is not the first time a system of cumulative voting has been implemented in lieu of a traditional straight voting scheme. 19 However, it is the first time cumulative voting has been imposed and maintained at the federal level. Cumulative voting originated in the corporate board room as a way of protecting minority owners interests and has since been used in many local elections for city and county governments and school boards. 20 In Texas, over fifty-seven jurisdictions adopted cumulative vot- 16. Vill. of Port Chester, 704 F. Supp. 2d at 418 (listing three necessary preconditions used to determine if the Voting Rights Act had been violated); see also Thornburg v. Gingles, 478 U.S. 30, 46, 50 (1986) (holding that in order to succeed on a vote dilution claim under the Voting Rights Act, plaintiffs must first establish that the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district ). 17. Vill. of Port Chester, 704 F. Supp. 2d at 418 (explaining that the satisfaction of the Gingles preconditions is only the first step in a two-step inquiry) (citation omitted); Johnson v. De Grandy, 512 U.S. 997, 1002 (1994) (focusing on the totality of circumstances as articulated in Gingles); Gingles, 478 U.S. at 36 (noting that an examination of certain factors are necessary to determine if a Voting Rights Act violation has occurred). These factors are based on a Senate Judiciary Committee Report that supplemented the 1973 amendment to Section 2 of the Voting Rights Act. Vill. of Port Chester, 704 F. Supp. 2d at 418; Gingles, 478 U.S. at While this report contained numerous relevant factors, the Gingles Court stated that they were neither comprehensive nor exclusive. Gingles, 478 U.S. at Vill. of Port Chester, 704 F. Supp. 2d at (explaining that the defendant jurisdiction is given the first chance to correct a Voting Rights Act violation by proposing their own remedy). 19. See, e.g., United States v. Euclid City Sch. Bd., 632 F. Supp. 2d 740, 771 (N.D. Ohio 2009) (implementing a system of limited voting for the school board election); Cousin v. McWherter, 904 F. Supp. 686, 714 (E.D. Tenn. 1995) (finding a system of cumulative voting to be a possible remedy for impermissible vote dilution); Cane v. Worcester Cnty., Md., 847 F. Supp. 369, 374 (D. Md. 1994) (imposing a system of cumulative voting for the county commissioner election). 20. Jeffrey N. Gordon, Institutions as Relational Investors: A New Look at Cumulative Voting, 94 COLUM L. REV. 124, 127 (1994). Cumulative voting became an option for cities such as Amarillo in 1995 when then-governor George W. Bush signed legislation that allowed school districts in Texas to adopt proportional systems such as cumulative voting and limited voting in their local elections. The History of Cumulative Voting in Amarillo, FAIRVOTE, (last visited Sept. 6, 2011). Since then, Amarillo has become the largest jurisdiction in the United States to implement cumulative voting after initially adopting the system for its school board elections in Id. In the

6 2011] CUMULATIVE VOTING 525 ing as a remedy to Voting Rights Act suits between 1991 and In Illinois, cumulative voting was used in lower house elections from 1870 to 1980; however, voters abolished the system in reaction to the slogan, [f]ire [fifty-nine] lousy politicians with one shot, and majority voting remains in place today. 22 Cumulative voting is controversial because it changes the basic principle underlying universal suffrage in America. In this Comment, I will examine cumulative voting in the context of the Voting Rights Act, and make a comparison to the current at-large, district-based elections used in the majority of states today. I will focus on the history and effect of cumulative voting on all citizens to determine to what extent this process fosters minority representation, if at all, whether there are unintended consequences, and how any such consequences weigh for or against cumulative voting as a remedy for Voting Rights Act violations. II. SUFFRAGE AND THE VOTING RIGHTS ACT There is no individual right to vote in the United States Constitution. When the United States was founded, only White men over the age of twenty-one who owned property were typically allowed to vote. 23 By not addressing the suffrage issue more specifically, the authors of the Constitution set the stage for an interminable struggle over voting rights. 24 Although most economic impediments to voting had disappeared by the mid-1850s, 25 the road to nearly universal suffrage has been a long one. Passed by Congress in 1869 and ratified in 1870, the Fifteenth Amend elections, an African-American candidate was elected for the very first time and a Hispanic candidate was elected for the first time since the seventies. Id. 21. The History of Cumulative Voting in Amarillo, supra note Cumulative Voting Illinois, NEW RULES PROJECT, (last visited Sept. 6, 2011). In 2005, the Midwest Democracy Center campaigned to reestablish a system of cumulative voting for the Illinois House of Representatives by introducing a bill to amend the Illinois Constitution. Id. The goal of the bill was to have cumulative voting in place by the 2008 election. Id. This campaign was unsuccessful. 23. Ed Crews, Voting in Early America, CW J., Spring 2007, available at In this article, Crews describes the first election and the establishment of voting rights in early America. Id. When the United States was founded, most of the nation was excluded from voting, including Native Americans, women, most African-Americans, men who were under the age of twenty-one, and White males without property. Id. These voting restrictions stemmed from eighteenth-century England where the male-only electorate held strong beliefs about the incompetency of both women and minorities. Id. 24. Id. 25. Id.

7 526 THE SCHOLAR [Vol. 14:521 ment guaranteed the right to vote to African-American men. 26 However, this guarantee was short-lived for most former slaves, as many states responded to this new amendment by passing laws to restrict the newfound freedom of African-American voters. 27 Known as the Black Codes, these laws advocated the use of literacy tests and poll taxes to suppress the African-American vote. 28 Although women s suffrage was proposed in 1848, it wasn t until the passage of the Nineteenth Amendment in 1920 that women finally won the right to vote. 29 It has been over a century since the Supreme Court described the right to universal suffrage as fundamental because it is preservative of all rights. 30 This principle has remained strong throughout history. 31 As the Court stated in Wesberry v. Sanders 32 in 1964: Other rights, even the most basic, are illusory if the right to vote is undermined. 33 There has been a lot of progress since voting rights were first described as fundamental and obstacles that restrict a citizen s right to vote have been prohibited by law at the federal, state, and local level. 34 However, although 26. The right of citizens of the United States shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude. U.S. CONST. amend. XV, 1. The Fifteenth Amendment was the last of three Reconstruction Amendments implemented to protect the rights of African-Americans. See MICHAEL BURGAN, THE RECONSTRUCTION AMENDMENTS 6 (Julie Gassman ed., 2006). These amendments were passed as part of Reconstruction, a program created by Northern lawmakers to help rebuild the South after the Civil War. Id. at 6 7. The abolition of slavery by the Thirteenth Amendment and the Fourteenth Amendment (which included a redefinition of citizenship, and the Privileges or Immunities, Due Process, and Equal Protection Clauses) faced much opposition. Id. at 18; see also U.S. CONST. amend. XIII, XIV (for the full text of the amendments). However, in the end they were successful in restructuring the United States to extend all constitutionally guaranteed rights to the entire male population. BURGAN, supra at BURGAN, supra note 26, at Id. at The Black Codes were similar to the Slave Codes which existed before the abolition of slavery and were used to keep newly freed slaves dependent on their former masters. Id. 29. U.S. CONST. amend. XIX (prohibiting each state and the federal government from denying the right to vote based on sex); Kris Kobach, Rethinking Article V: Term Limits and the Seventeenth and Nineteenth Amendments, 103 YALE L.J. 1971, 1980 (1994). 30. NAT L CONFERENCE OF STATE LEGISLATURES, REDISTRICTING LAW 2010 at 51 (2009) (citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). 31. Id U.S. 1 (1964). 33. Wesberry v. Sanders, 376 U.S. 1, 17 (1964). 34. U.S. CONST. amend. XXIV (prohibiting both Congress and the states from conditioning the right to vote in federal elections on payment of a poll tax or other types of tax). The Twenty-Fourth Amendment was proposed by Congress in 1962 and ratified in The Constitution of the United States: Amendments 11-27, THE CHARTERS OF FREEDOM, (last visited Sept. 6, 2011).

8 2011] CUMULATIVE VOTING 527 all citizens earned this fundamental right, the right to vote continued to be illusory for many Americans because Southern legislators resisted voting rights legislation long after the passage of the Fifteenth Amendment. 35 As a result, Congress passed the Voting Rights Act in 1965 which has been regarded by many as the most successful piece of civil rights legislation ever adopted by the United States Congress. 36 The Voting Rights Act was created to protect the right to vote as guaranteed by the Fifteenth Amendment and to enforce the Fourteenth Amendment by giving minority voters an opportunity to engage in the electoral process free from discrimination. 37 Section 2 38 and Section 5 39 of the Act are of particular importance for the analysis of this Comment. Section 2 of the Act consists of a broad ban on discriminatory voting practices across the nation by focusing not only on voting systems that are intended to be racially discriminatory, but also on those that have proven to have a racially discriminatory impact. 40 It prohibits all jurisdictions from establishing a voting qualification or prerequisite to voting or standard, practice or procedure... in a manner which results in the denial or abridgement of the right... to vote on account of race or color. 41 Section 5 of the Act aims to prevent voting rights violations before they start by requiring certain states to clear any changes to their election procedures with the U.S. Attorney General to ensure that they do not have a discriminatory purpose or effect before allowing them to become law. 42 In 1982 Congress amended Section 2 to provide that a plaintiff did not have to prove discriminatory purpose to establish a violation of the section. 43 The 1982 amendments also codified a totality of circumstances standard to determine if a challenged procedure effectively limited the right to vote. 44 While the Voting Rights Act eliminated formal exclusions and gave members of minority groups a legally recognized right to vote, the issue 35. Introduction to Federal Voting Rights Laws, supra note Id.; see Voting Rights Act of 1965, Pub. L , 79 Stat. 437 (codified at 42 U.S.C. 1973) ( An Act to enforce the [F]ifteenth [A]mendment to the Constitution of the United States and for other purposes. ). 37. Introduction to Federal Voting Rights Laws, supra note Voting Rights Act of 1965, 2, 79 Stat. at 437 (codified at 42 U.S.C. 1973(a)). 39. Id. 40. Introduction to Federal Voting Rights Laws, supra note , 79 Stat. at , 79 Stat. at 439 (codified at 42 U.S.C. 1973c); Introduction to Federal Voting Rights Laws, supra note Voting Rights Act Amendments of 1982, Pub. L , Sec. 3, 2(a), 96 Stat. 131, 134 (codified as amended at 42 U.S.C. 1973(b)); NAT L CONFERENCE OF STATE LEG- ISLATURES, supra note 30, at Sec. 3, 2(b), 96 Stat. at 134.

9 528 THE SCHOLAR [Vol. 14:521 has now become whether this right is an effective tool to ensure that minority groups have a fair chance to have their interests represented. 45 The focus shifted from universal suffrage to equitable voting systems when racial gerrymandering became commonplace in the 1990s in response to the Voting Rights Act. 46 In an attempt to prevent violations of the Act, the Department of Justice began encouraging states subject to Section 5 preclearance to draw redistricting plans to create majority minority districts in an attempt to prevent violations of the Voting Rights Act. 47 The current design and the one used most often to elect our local, state, and federal legislatures requires the winning candidate to garner either a plurality or a majority of the votes in a district to ensure representation is apportioned according to local geographic areas. 48 The basis for this process is the concept of one person, one vote with new district boundary lines being drawn every ten years based on the census as required by the Constitution. 49 When states began to draw redistricting plans to create new districts in which members of a racial or language minority group consisted of a majority of the population (majority minority districts) some of the districts obtained bizarre shapes that caused them to be labeled racial gerrymanders. 50 Racial gerrymandering is defined as the deliberate and arbitrary distortion of district boundaries... for [racial] purposes. 51 It exists when 45. See Richard Briffault, Lani Guinier and the Dilemmas of American Democracy, 95 COLUM. L. REV. 418, (1995) (reviewing LANI GUINIER, THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS IN REPRESENTATIVE DEMOCRACY (1994)) (describing issues to which Guinier takes objection in the electoral process created by the Voting Rights Act and its subsequent amendments). 46. NAT L CONFERENCE OF STATE LEGISLATURES, supra note 30, at 71. The National Conference of State Legislatures (NCSL) is a bipartisan organization that accommodates legislators throughout the United States with up-to-date research and analysis on a vast array of legal issues. Id. For more information about the organization itself, see the NCSL website. About Us: National Conference of State Legislatures, NAT L CONFERENCE OF STATE LEGISLATURES, (last visited Sept ). 47. NAT L CONFERENCE OF STATE LEGISLATURES, supra note 30, at Briffault, supra note 45, at Michael D. Robbins, Gerrymander and the Need for Redistricting Reform, FRAUD FACTOR, (last revised Jan. 2, 2007) (discussing redistricting under the subheading Gerrymander Violates the Fairness Principle ). 50. NAT L CONFERENCE OF STATE LEGISLATURES, supra note 30, at Id. at 71 (quoting Shaw v. Reno (Shaw I), 509 U.S. 630, 640 (1993)); see also Robbins, supra note 49 (defining gerrymandering as an abuse of the redistricting process to draw election district boundaries that give a significant unfair and undeserved vote count advantage in future elections to the majority political party, which controls the redistricting process, and to incumbent politicians of all political parties ). Gerrymandering is not a recent phenomenon. Id. The word itself was created in 1812 in response to a bizarre

10 2011] CUMULATIVE VOTING 529 race is a legislature s dominant rationale for drawing district lines and was first used in the South to instigate racial discrimination in response to the passage of the Fifteenth Amendment. 52 The boundary of Tuskegee, Alabama in 1960 is a prime example of this type of districting. In an attempt to limit African-American representation in Congress, the boundary was redrawn from a square to an uncouth twenty-eight-sided figure to expel African-Americans from the city. 53 The redistricting that followed the 1990 decennial census was used in the opposite way in an effort to increase minority representation instead of limiting it. 54 Many suits were filed in federal district court arguing that these redistricting plans violated the Equal Protection Clause of the Fourteenth Amendment. 55 The first case to reach the Supreme Court was Shaw v. Reno, 56 challenging North Carolina s congressional redistricting plan. 57 Numerous North Carolina residents objected to the new district created in the plan, asserting that it concentrated a majority of Black voters in an arbitrary manner. 58 The Court explained that the racial gerrymandering claims must be examined against the backdrop of this country s long history of racial discrimination in voting and commented on the peculiar shape of the minority district stating that reapportionment is one area in which appearances do matter. 59 The Court found that if a redistricting map is so bizarre on its face that it is unexplainable on grounds other than race, it must be held to the standard of strict scrutiny. 60 In similar cases that followed Shaw, the Supreme Court established procedures to follow in evaluating racial gerrymandering challenges to majority minority redistricting plans. 61 election district formulated by Elbridge Gerry, an American political leader. Id. The created district resembled a salamander and the word gerrymander was coined after Gerry expressed his support for the redistricting bill. Id. 52. Id. 53. Id. (citing Shaw v. Reno, 509 U.S. 630, 640, 113 (1993)). 54. Id. 55. See Lawyer v. Dep t of Justice, 521 U.S. 567, 576 (1997) (asserting that a reapportioned district violated the Equal Protection Clause); see also Bush v. Vera, 517 U.S. 952, 958 (1996) (alleging that the majority of newly created congressional districts in Texas violated the Fourteenth Amendment by racial gerrymandering) U.S. 630 (1993). 57. NAT L CONFERENCE OF STATE LEGISLATURES, supra note 30, at Shaw v. Reno, 509 U.S. 630, 637 (1993). 59. Id. The Court explained that the district winds in snake like fashion through tobacco country, financial centers, and manufacturing areas until it gobbles in enough enclaves of black neighborhoods. Id. at Id. at 644 (1993) (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1996)). 61. The Supreme Court curtailed race-based districting and other forms of racial gerrymandering while establishing procedures to follow when assessing such claims in many decisions at this time. See, e.g., Bush v. Vera, 517 U.S. 952, 959 (1996) (applying strict

11 530 THE SCHOLAR [Vol. 14:521 This procedure puts the burden of proving that a redistricting plan was racially gerrymandered on the plaintiff who is challenging the constitutionality of the plan. 62 Once the plaintiff proves this, the court must apply strict scrutiny to determine whether the state had a compelling governmental interest in creating the majority minority district. 63 It is important to note that although the Supreme Court has held several majority minority redistricting plans unconstitutional using this procedure, the Court has made it clear that race-conscious redistricting is not always unconstitutional. 64 Section 2 cases have primarily addressed claims that certain political procedures such as the placement of minority groups into multi-member districts, packing minorities into a single district, and fracturing minorities into multiple districts have made the political process unequal for minorities. 65 Each one of these methods of districting may have a negative effect on minority voting strength. 66 Minority voting strength is easily diluted in multimember district systems by placing the minority group in a larger multi-member district that has a greater population of majority voters. 67 As a result, minority voters will be unable to elect their preferred candidate because of the overwhelming population of majority voters. The validity of multi-member districts has been challenged in many vote dilution cases both before and after the 1982 amendments. 68 However, courts continue to hold that these districts are not per se unconstitutional, but may violate Section 2 if the districting results in a denial of equal opportunity to take part in the electoral process. 69 Packing scrutiny and explaining that for strict scrutiny to apply, the plaintiffs must prove that other, legitimate districting principles were subordinated to race (quoting Miller v. Johnson, 515 U.S. 900, 916 (1995))); Miller, 515 U.S. at 916, 927 (explaining that the excessive use of race in districting causes societal harm by turning electorates into racial blocs which makes it necessary to make a distinction between being aware of radical considerations and being motivated by them ); United States v. Hays, 515 U.S. 737, 739 (1995) (finding that in order to state a racial gerrymander claim a plaintiff must have been personally subjected to the racial classification). 62. Shaw, 509 U.S ; see also Hays, 515 U.S. at 744 (explaining that any citizen that has been harmed by a racial classification will have standing if they can prove they have been personally injured by the classification). 63. Shaw, 509 U.S. at Id. at LYDIA QUARLES, THE JOHN C. STENNIS INST. OF GOV T, POLICY MATTERS: CON- SIDERING SECTION 2 OF THE VOTING RIGHTS ACT OF 1965 at 4 (Jan. 18, 2010), available at Id. 67. Id. 68. Id. 69. Id.; see, e.g., Ketchum v. Byrne, 740 F.2d 1398, (7th Cir. 1984) ( There appears to be no difference in the practical result or in the available remedy regardless of

12 2011] CUMULATIVE VOTING 531 districts is another method that is often challenged as a violation of the Voting Rights Act. Packing can be easily established by drawing district lines along racially segregated housing patterns in order to concentrate as many minority voters into a single electoral district to reduce their influence in other districts. 70 This strategy can also minimize the ability of minorities to elect candidates of their choice. The first time the Supreme Court applied the amended Voting Rights Act to a Section 2 claim was in Thornburg v. Gingles, in which the Court addressed a third type of impermissible vote dilution known as fracturing. 71 Fracturing occurs by splitting minority voters from another concentration of minority voters and adding them to a large majority district; this often creates a voting polarity which minimizes the ability of the fractured group to elect a candidate of its choice. 72 In Gingles, the Court held that in order to succeed on a vote dilution claim under Section 2, plaintiffs must: (1) establish that a minority group is sufficiently large and geographically compact to constitute a majority in a single-member district, (2) that the minority group is politically cohesive, and (3) without special circumstances, bloc voting by the White majority usually defeats the minority s preferred candidate. 73 Justice Brennan, writing for the majority, rejected the previous test of intent to discriminate and affirmed that to decide whether a violation of Section 2 has occurred, a court must determine if as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice. 74 Justice Brennan also indicated that the proper way to determine this is to assess the impact of the contested practice in regard to the totality of circumstances based on seven objective factors developed by the Senate Judiciary Committee. 75 how the resulting discrimination is characterized. ); United States v. Marengo Cnty. Comm n, 731 F.2d 1546, 1550 (11th Cir. 1984) (explaining that at-large elections are not directly prohibited; however, any practice that denies an individual the right to vote based on race violates the Voting Rights Act); Jones v. City of Lubbock, 727 F.2d 364, 385 (5th Cir. 1984) (finding that bloc voting is not in itself unconstitutional). 70. See Rybicki v. State Bd. of Elections, 574 F. Supp. 1082, 1093 (N.D. Ill. 1982) ( Packing occurs when a minority group is concentrated into one or more districts so that it constitutes an overwhelming majority in those districts (and part of its vote is wasted ). ). 71. Thornburg v. Gingles, 478 U.S. 30, 46 (1986). 72. See Rybicki, 574 F. Supp. at 1093 (describing fracturing as occurring when a geographically unified minority group is unnecessarily split between a number of districts ). 73. Gingles, 478 U.S. at Id. at 44 (quoting S. REP. NO , at 36 (1982)). 75. Id. at (explaining the procedure for determining violations of the Voting Rights Act). The totality of circumstances factors were determined by the Senate Judiciary

13 532 THE SCHOLAR [Vol. 14:521 In numerous cases since, the Supreme Court has attempted to clarify the Gingles factors. For example, in Growe v. Emison, 76 the Court determined that the Gingles vote dilution claim preconditions apply not only to single-member districts, but also to multi-member or at-large districts. 77 The Court s opinion in Growe is also significant because it determined that voting age population is the best measurement to use when examining a Section 2 claim. 78 One year after the Growe decision, the Court in Johnson v. De Grandy 79 rejected an absolute rule that would bar Section 2 claims if the number of majority minority districts is proportionate to the minority group s share of the relevant voting age population. 80 To reach this conclusion, the Court ignored the first prong of the Gingles test and instead focused on the totality of circumstances. 81 Since Committee as a supplement to the 1973 amendment to Section 2 of the Voting Rights Act and include: (1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; (2) the extent to which voting in the elections of the state or political subdivision is racially polarized; (3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; (4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process; (5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; (6) whether political campaigns have been characterized by overt or subtle racial appeals; [and] (7) the extent to which members of the minority group have been elected to public office in the jurisdiction. S. REP. NO , at 28 29; Gingles, 478 U.S. at U.S. 25 (1993). 77. Growe v. Emison, 507 U.S. 25, 40 (1993). Although the Court determined that the Gingles preconditions did apply to both single- and multi-member districts, the Court discovered that the district court had completely ignored the threshold factors and instead jumped directly to the totality of circumstances analysis. Id. at Because a Section 2 violation requires a plaintiff to prove that racial bloc voting exists and there was no evidence of such voting cohesion in these districts, the Court found that there was no Voting Rights Act violation in the first place. Id. at Id. at 39 n.4 (noting that a district s minority voting age population is the appropriate standard to use when assessing the validity of a Section 2 claim); see also Romero v. City of Pomona, 883 F.2d 1418, (9th Cir. 1989) (explaining that only minority voters possess the requisite potential to have their vote diluted) U.S. 997 (1994). 80. Johnson v. De Grandy, 512 U.S. 997, 1000 (1994). 81. Id. at

14 2011] CUMULATIVE VOTING 533 the Court s decision to implement strict scrutiny as enunciated in Shaw, the Court has determined that a district that is not reasonably compact cannot remedy a perceived Section 2 violation because it fails to satisfy the first threshold requirement of the Gingles standard. 82 Although the Gingles preconditions have been interpreted in a variety of ways, the three-part test, combined with an objective evaluation of the totality of circumstances, continues to be the proper method to determine a Voting Rights Act violation. 83 Because the Act gives the district court the broad discretionary authority to implement an adequate remedy that fully alleviates the underlying violation, it becomes necessary to determine what constitutes a proper remedy for a Section 2 violation. 84 After discovering a Section 2 violation, districts courts must give the defendant jurisdiction the first chance to create an acceptable remedial plan; if the proffered plan is legally acceptable, the court is required to accept and enforce the remedy. 85 Therefore, after a determination of illegal vote dilution, 86 a district court s remedial authority seems to be open-ended, as any legal remedy that aids in correcting the vote dilution becomes a feasible option. 87 This broad authority was exemplified most recently in United States v. Village of Port Chester, 88 when Judge Robinson ordered an alternative electoral system known as cumulative voting as a remedy to a Voting Rights Act violation. Mandatory cumulative voting originated in 1870 when the Illinois Constitution was revised to require cumulative voting for both the election of the Illinois House of Representatives and the election of directors for corporations throughout the 82. See Steven J. Mulroy, The Way Out: A Legal Standard for Imposing Alternative Electoral Systems as Voting Rights Remedies, 33 HARV. C.R.-C.L. L. REV. 333, 356 (1998) (explaining that the Shaw restrictions also apply to the implementation of alternative voting systems because no court has done so in circumstances where it was impossible to draw a reasonably compact single-member district ). 83. Id. 84. Id. at Id. 86. The Role of Section 2 Redistricting & Vote Dilution, REDRAWINGTHELINES.ORG, (explaining that [p]ractices that have the effect of depriving minority voters of an equal opportunity to elect a candidate of choice constitute minority vote dilution ); see also Robert Farley, Comment, Preventing Unconstitutional Gerrymandering: Escaping the Intent/Effects Quagmire, 38 SE- TON HALL L. REV. 397, (2008) (explaining that there are permissible and impermissible forms of vote dilution, which can be either direct or indirect). Gerrymandering can cut both ways, both for and against minorities, depending on if the employed mechanism is normal, non-partisan redistricting or unconstitutional gerrymandering. Id. at Mulroy, supra note 82, at F. Supp 2d 411 (S.D.N.Y. 2010).

15 534 THE SCHOLAR [Vol. 14:521 state. 89 The goal was to protect minority interests from abuse of power by the majority, especially in situations when being a member of the board gave the minority the information needed to police against fraud. 90 The late 1940s marked the height of this type of voting when twenty-two states adopted mandatory cumulative voting procedures for private corporations. 91 However, by 1992 mandatory cumulative voting was maintained in only six states; forty-four states chose to adopt the permissive form; and one state (Massachusetts) completely banned cumulative voting. 92 In fact, no significant corporate law jurisdiction has continued to implement a system of mandatory cumulative voting as they found that elimination of such a system served shareholders interests and protected minority interests in a more equitable manner. 93 Mandatory cumulative voting was also rejected in the electoral context when voters in Illinois abolished the system in 1980 in order to save money and increase competition for state house seats. 94 Cumulative voting has primarily been used in local elections for city and county governments and school boards. Under this proportional system, voters get multiple votes to cast and can spread them among candidates or concentrate them on one or more candidates. If there are five seats to fill, voters will get five votes and will be allowed to give all of those votes to one candidate or distribute them among several candidates. 95 Proponents of this method argue that this system preserves the benefits of at-large elections while addressing the problem of minority exclusion. 96 Also, some courts have expressed support for the use of cumulative voting as a valid alternative to single-member districts. 97 How- 89. Gordon, supra note 20, at 142 (explaining that cumulative voting has fallen into great disfavor in the corporate world). 90. Id. 91. Id. at Id. at (illustrating the rise and fall of cumulative voting in the corporate setting throughout the United States). Gordon explains that cumulative voting is rarely used in large public corporations. Id. at In fact, even the states that chose to maintain the permissive form of cumulative voting rarely, if ever, employ it. Id. 93. Id. at 158, See Cumulative Voting Illinois, supra note 22 (explaining that in a typical election using cumulative voting, each district would only have one candidate running from the minority party and two from the majority party). 95. The History of Cumulative Voting in Amarillo, supra note 20 (explaining the various ways in which a voter can cast their votes under a system of cumulative voting); see also Mulroy, supra note 82, at 341 (providing the mathematical formula to determine the ability of minority voters to elect the candidate of their choice using cumulative voting). 96. Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L. REV. 1413, 1463 (1991). 97. Mulroy, supra note 82, at 358.

16 2011] CUMULATIVE VOTING 535 ever, in McGhee v. Granville County, 98 the Fourth Circuit cast doubt on using a system of cumulative voting as a remedial course, explaining that Gingles implies that the universe of Section 2 remedies is limited to single-member districts. 99 Nonetheless, because using districting as a remedy allows those who draw the boundaries to have an inordinate amount of control over electoral outcomes, it is easy to see why many citizens are deeply concerned about how to obtain effective and non-discriminatory voting practices as remedies for Voting Rights Act violations. III. CUMULATIVE VOTING AS A REMEDY The implementation of cumulative voting in the Village of Port Chester marks the first time this remedy has been ordered and approved in the electoral context at the federal level. 100 Although this is not the first time a federal court has chosen to implement a nontraditional voting method as a remedy for a Voting Rights Act violation, more often than not, these systems are discarded by the courts. 101 For example, in 2009 the Northern District of Ohio in United States v. Euclid City School Board 102 chose to impose a similar proportional voting system known as limited voting in lieu of a districting plan. 103 Limited voting is used in multi-seat electoral districts where each voter is only allowed to vote for one candidate despite the fact that there is more than one seat available. 104 The court F.2d 110 (4th Cir. 1988). 99. McGhee v. Granville Cnty., 860 F.2d 110, (4th Cir. 1988) (reiterating that the first Gingles precondition requires a plaintiff to show they are numerous and compact enough to draw a single-member district as a threshold matter in order to find liability, which supports this implication) See Cousin v. Sundquist, 145 F.3d 818, 822 (6th Cir. 1998) (explaining that at the time Cousin v. McWherter, 904 F. Supp. 686 (E.D. Tenn. 1995) was decided, it was the first time cumulative voting had been imposed as a remedy by a federal judge in the electoral context). However, because the decision was subsequently reversed, there continued to be no example in federal case law in which cumulative voting ha[d] been ordered and approved for elections to any office. Id. This all changed with Judge Robinson s decision in Port Chester See Dillard v. Baldwin Cnty. Comm r, 376 F.3d 1260, 1268 (11th Cir. 2004) (explaining that cumulative voting is not accepted as a remedy in Alabama); see also Sundquist, 145 F.3d at 829 (indicating that cumulative voting is an inappropriate remedy for a Section 2 claim ); White v. Alabama, 74 F.3d 1058, (11th Cir. 1996) (finding that the Voting Rights Act cannot be used as a method to achieve proportional representation); Nipper v. Smith, 39 F.3d 1494, 1546 (11th Cir. 1994) (refusing to accept cumulative voting as a valid remedy after determining that the system encourages racial bloc voting) F. Supp. 2d 740 (N.D. Ohio 2009) See United States v. Euclid City Sch. Bd., 632 F. Supp. 2d 740 (N.D. Ohio 2009) (addressing a claim that the at-large system of electing members of the school board was a form of illegal vote dilution that polarized voting strength of African-Americans in the city) Id. at 755.

17 536 THE SCHOLAR [Vol. 14:521 discarded cumulative voting as a remedial option after determining that the system is difficult both for a city to implement and for voters to understand. 105 In this instance, the court used the threshold of exclusion or the percentage of the vote that will guarantee the winning of a seat even under the most unfavorable circumstances to determine whether minorities would have the opportunity to elect the candidate of their choice under the system of limited voting proposed by the Euclid City School Board. 106 The court found that the straightforward limited voting proposal would remedy the vote dilution violation and provide an opportunity for African-Americans to take part in the political process in a manner that re-districting and cumulative voting could not. 107 The first time a district court imposed cumulative voting in the electoral setting was over fifteen years ago in Cane v. Worcester County, 108 and its decision was quickly reversed by the Fourth Circuit. 109 In Cane, the court selected a cumulative voting plan as a remedy for vote dilution after determining that the straight voting system the county used to elect members of the Board of Commissioners violated Section 2 of the Voting Rights Act. 110 The court concluded that cumulative voting would compel candidates to appeal to all voters in the county with the hope that each elected commissioner would therefore serve the interests of the entire community. 111 The court also indicated that a cumulative voting plan would negate the necessity to fashion the type of districts that created the vote dilution in the first place. 112 However, the Fourth Circuit found that by ordering the county to implement the cumulative voting system, the district court abused its discretion by fail[ing] to give due deference to another legislative judgment set forth on the record. 113 The legislative findings introduced earlier in the case clearly expressed that the retention of commissioner resident districts would be the best method to address the needs and serve the interests of the county s citizens. 114 Because a cumulative voting system would abolish the county s preferred method of electing commissioners, the Fourth Circuit remanded the case to the district court to allow the county to determine an appropriate legally acceptable remedy Id. at Id. at 761 (quoting Dillard v. Cuba, 708 F. Supp. 1244, 1246 (M.D. Ala. 1988)) Id. at F. Supp. 369 (D. Md. 1994) Cane v. Worcester Cnty., Md., 35 F.3d 921, 929 (4th Cir. 1994) Cane v. Worcester Cnty., Md., 847 F. Supp. 369, 374 (D. Md. 1994) Id. at Id Cane, 35 F.3d at Id Id. at 929.